FIFTH DIVISION

MCFADDEN, P. J.,

RICKMAN and REESE, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

March 4, 2019

In the Court of Appeals of Georgia

A18A1688. FORD v. FORD.

MCFADDEN, Presiding Judge.

This is an appeal from an award of attorney fees in a divorce action between

James and Claire Ford (respectively, “the husband” and “the wife”). The trial court

awarded attorney fees to the wife pursuant to OCGA § 19-6-2, following the entry of

a final judgment and decree of divorce that incorporated the parties’ settlement

agreement. As detailed below, the award was improper because the terms of the

settlement agreement preclude it. We are unpersuaded by the wife’s argument that we

cannot address this issue on appeal and so by her argument that the appeal is frivolous.

We therefore reverse the award of attorney fees and deny the wife’s motion for

frivolous-appeal sanctions.

1. Procedural history and posture.
The wife filed a complaint for divorce on August 15, 2016. Among other

things, she asked to be awarded temporary and permanent alimony and attorney fees.

The trial court entered a consent temporary order that required the husband to pay

monthly support payments to the wife and expressly reserved the issue of attorney

fees. The parties conducted discovery and the husband demanded a jury trial.

Subsequently, the wife filed a motion seeking interim attorney fees and expenses of

litigation under OCGA § 19-6-2. It appears that the parties reached a settlement

agreement before the trial court could rule on that motion.

The parties’ settlement agreement contains the following provision entitled

“Alimony”:

Neither party shall pay any alimony to the other. Each party does forever

waive all rights to receive any alimony from the other party, including

periodic, lump-sum, alimony in-kind, or any other claims of any nature

whatsoever each may have against the other for any payment in the

nature of alimony under existing or future laws or statutes of the State of

Georgia or any other state or country in which the parties may be

residing. Each accepts this Agreement as settlement of all past, present,

and future claims ofmodification of alimony as provided byOCGA § 19-

6-19 (a), (b), (c), (d), and any amendments thereto, and any and all

future laws regarding modification of alimony as may be enacted in this

or any other state, and the parties are specifically relying upon the case

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of Varn v. Varn, 242 Ga. 309 [248 SE2d 667] (1978)[,1

] in agreeing to

this waiver.

The settlement agreement also contains a provision entitled “Attorney[ ] Fees,” which

states:

The parties agree that the Honorable Christopher S. Brasher, Superior

Court of Fulton County, Georgia shall determine the issue of attorney[

] fees. Unless otherwise agreed in writing, the parties shall submit their

respective Motion for Attorney[ ] Fees to Judge Brasher by letter brief

within thirty (30) days of the execution of this Agreement by both

parties.

The trial court entered a final judgment and decree of divorce on December 7,

2017, incorporating the parties’ settlement agreement. Subsequently, the wife

submitted a letter brief asking the trial court to award her attorney fees under both

OCGA § 19-6-2 and OCGA § 9-15-14 (b). The husband filed a letter brief in

response, in which he argued that the wife was not entitled to attorney fees under

either Code section; he did not mention the settlement agreement’s waiver-of-alimony

1 The Varn decision concerned the language required to waive the right to

modification of alimony, which is not an issue in this case. See Varn, 242 Ga. at 311

(1).

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provision in his letter brief. The trial court awarded the wife attorney fees under

OCGA § 19-6-2 but denied her request for attorney fees under OCGA § 9-15-14. The

husband moved for reconsideration ofthe award of attorney fees under OCGA § 19-6-

2 on the ground that the award constituted alimony in violation of the terms of the

parties’ settlement agreement. The trial court had not ruled on the motion for

reconsideration when the husband petitioned for a discretionary appeal from the

attorney fee award. See generally Threatt v. Forsyth County, 250 Ga. App. 838, 844

(2) (552 SE2d 123) (2001) (motion for reconsideration does not extend time for filing

notice of appeal). We granted discretionary appellate review of the award.

2. This court may address the question of whether the terms of the settlement

agreement preclude the award of attorney fees.

We first consider whether we may address the impact of the terms of the

parties’ settlement agreement on the award of attorney fees. The wife argues that we

may not address this issue for two reasons — because the husband did not properly

preserve it for appellate review and because he did not adequately enumerate it as

error in his appellate brief. We disagree on both counts.

(a) Preservation of issue for appellate review.

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The wife argues that the husband did not adequately preserve for appellate

review the issue of whether the settlement agreement precluded the attorney fees

award. The husband made this argument in his motion for reconsideration, but the

trial court did not rule on that motion and “[i]ssues which have not been ruled on by

the trial court may not be raised on appeal.” Brookfield Country Club v. St. JamesBrookfield, LLC, 287 Ga. 408, 413 (3) (696 SE2d 663) (2010) (citation and

punctuation omitted). This rule, however, does not prevent the husband from

challenging the sufficiencyofthe evidence supporting the attorneyfees award, and the

husband may argue the effect of the settlement agreement in making that challenge.

A party who bears the burden of proof cannot obtain a judgment without

demonstrating that he or she is entitled to that judgment. Where the party obtains the

judgment without meeting the burden of proof, the opposing party may challenge the

judgment on that ground, and in doing so may assert arguments not made to the trial

court. We see this principle at play in our case law in several contexts: Where a

plaintiff obtains a summary judgment without meeting his or her evidentiary burden

of proving a prima facie case, the defendant against whomthe summary judgment was

entered may challenge the sufficiency of the evidence on appeal even if he or she did

not expressly raise that argument in the trial court. See Dental One Assoc. v. JKR

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Realty Assoc., 269 Ga. 616, 618 (1) (501 SE2d 497) (1998). See also Kammerer Real

Estate Holdings, LLC v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 399 (740 SE2d

635) (2012) (“an argument on a factual issue that is part of the movant’s prima facie

case is not waived by failing to raise it in the trial court”) (citation omitted),

disapproved in part on other grounds by Artson, LLC v. Hudson, 322 Ga. App. 859,

862 (2) n. 1 (747 SE2d 68) (2013). Where a defendant obtains the dismissal of an

action for failure to state a claimwithout demonstrating the statutory prerequisites for

that dismissal, the plaintiff may assert that failure on appeal using a specific argument

not made to the trial court. See Procter v. Gwinnett Pulmonary Group, P.C., 312 Ga.

App. 486, 487 (1) (718 SE2d 860) (2011). Where a plaintifffails to present evidence

at trial of a specific element of the cause of action, but the defendant does not argue

this failure in his motion for directed verdict, he may nevertheless attack that element

in challenging the sufficiency of the evidence on appeal. See Redmon v. Daniel, 335

Ga. App. 159, 163 (1) n. 5 (779 SE2d 778) (2015). Where a plaintiffseeking punitive

damages fails to meet a statutorily-imposed procedural burden for obtaining such

damages, but the defendant does not properly object to that failure below, he

nevertheless may obtain reversal of the award on that ground. See Quay v. Heritage

Financial, 274 Ga. App. 358, 361 (1) (617 SE2d 618) (2005).

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Applying the principle to this case, the husband mayargue on appeal that, given

the settlement agreement’s language, the wife failed to meet her burden of showing

her entitlement to the award of attorney fees. See Webb v. Watkins, 283 Ga. App. 385,

386 (2) (641 SE2d 611) (2007) (party seeking attorney fees bears burden of showing

entitlement to them). The dissent asserts that we cannot consider this argument

because the trial court did not have the opportunity to rule on it. But, fundamentally,

the husband’s argument is a challenge to the sufficiency of the evidence supporting

the award, and the trial court’s entry of the award was a ruling that the wife had met

her evidentiary burden. Cf. OCGA § 5-6-36 (a) (“The entry of judgment on a verdict

by the trial court constitutes an adjudication by the trial court as to the sufficiency of

the evidence to sustain the verdict, affording a basis for review on appeal without

further ruling by the trial court.”). We cannot construe the trial court’s ruling as

anything other than a determination that the evidence was sufficient to support the

award.

As explained in Division 3, below, the evidence was not sufficient to support

the award. Instead, the evidence showed that the parties agreed neither would be

entitled to such an award. We are not compelled on appeal to ignore the insufficiency

of the evidence simply because the husband, when he raised before the trial court the

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issue of the sufficiency of the evidence, did not articulate the best reason for its

insufficiency until his motion for reconsideration.

The dissent would have us affirman award to a partywho failed to demonstrate

entitlement to that award —an award that contravenes not only the parties’ settlement

agreement but the trial court’s own final judgment and decree of divorce. Neither

Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828-829 (2) (573 SE2d 389) (2002)

(holding that plaintiff opposing summary judgment must present all viable theories of

recovery to trial court), nor the other cases cited by the dissent require this result.

(b) Enumeration of issue on appeal.

The wife asserts that the husband’s argument regarding the effect of the

settlement agreement impermissibly expands his enumeration of errors, apparently

because his enumeration of errors does not set forth this specific argument. But the

husband is not required to set forth specific arguments in his enumeration of errors;

he is only required to set forth the legal ruling that he is challenging. Our Supreme

Court explained this important distinction in Felix v. State, 271 Ga. 534 (523 SE2d

1) (1999), holding that the “error” that must be set forth in an enumeration of errors

is “a specific ruling made by the trial court. . . . The individual facets of [an

appellant’s] attack on the legal ruling . . . are arguments in support of a legal position

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and are not, in and of themselves, errors of law.” Id. at 539. The husband sets forth in

his enumeration of errors the specific ruling of the trial court that he challenges — the

award of attorney fees under OCGA § 19-6-2. His assertion that the terms of the

settlement agreement precluded the award is not a legal ruling that must be included

in the enumeration of errors but merely an argument supporting his challenge to that

legal ruling, and he is not required to include that argument in his enumeration of

errors. See id.

3. The terms of the settlement agreement preclude the attorney fees award.

“As a general rule, Georgia law does not provide for the award of attorney fees

even to a prevailing party unless authorized by statute or contract.” Suarez v. Halbert,

246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000) (citation omitted). The statute

under which the attorney fees in this case were awarded, OCGA § 19-6-2, permits a

trial court to award attorney fees “as a part of the expenses of litigation, made at any

time during the pendency of the litigation, whether the action is for alimony, divorce

and alimony, or contempt of court arising out of either an alimony case or a divorce

and alimony case.” OCGA § 19-6-2 (a). “Attorney fees . . . awarded to a spouse

pursuant to OCGA § 19-6-2 . . . are considered to be a part of alimony.” Vakharwala

v. Vakharwala, 301 Ga. 251, 254 (1) (b) (799 SE2d 797) (2017) (citations omitted).

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The parties dispute whether the terms of their settlement agreement, which the

trial court incorporated into the final divorce decree, permit the recovery of attorney

fees under OCGA § 19-6-2. We agree with the husband that the settlement agreement

does not permit the award.

“‘The cardinal rule of[contract] construction is to ascertain the intention ofthe

parties.’ OCGA § 13-2-3[.]” Sutherlin v. Sutherlin, 301 Ga. 581, 584 (II) (A) (802

SE2d 204) (2017) (citation omitted). “Where any contractual term of a settlement

agreement incorporated into a decree is clear, unambiguous, and capable of only one

interpretation as written, the provision’s plain meaning must be strictly enforced.

However, where there is ambiguity, we must apply well-settled rules of contract

construction.” Cahill v. United States, 303 Ga. 148, 150 (810 SE2d 480) (2018)

(citations and punctuation omitted).

There is ambiguity in the settlement agreement as to whether the parties may

seek attorney fees under OCGA § 19-6-2. As stated above, an award of attorney fees

under OCGA § 19-6-2 is a form of alimony. The “Attorney[ ] Fees” provision of the

agreement sets forth a procedure by which the parties may request attorney fees, but

the “Alimony” provision of the agreement states that neither party has a right to

receive alimony in any form. Under our rules of contract construction, “we must

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attempt to give clear meaning to th[ese] provision[s], construing [them] in the context

of the entire agreement and giving [them] a construction that will uphold the

agreement rather than rendering it meaningless and ineffective.” Cahill, supra at 151

(citations and punctuation omitted). Accordingly, we “should avoid any construction

that renders portions of the contract language meaningless.” Sutherlin, supra at 585

(II) (A) (citations and punctuation omitted). See OCGA § 13-2-2 (4).

The wife argues for a construction that would except from the “Alimony”

provision of the settlement agreement alimony in the form of attorney fees under

OCGA § 19-6-2. Such construction would render meaningless the portion of the

provision stating that the parties waive their right to “any . . . claims of any nature

whatsoever . . . for any payment in the nature of alimony.” (Emphasis supplied.) This

broadly worded waiver leaves no room for the exception the wife proposes.

The husband argues for a construction that would except from the “Attorney[

] Fees” provision of the settlement agreement fees awarded under OCGA § 19-6-2.

This construction would not render meaningless any portions of the “Attorney[ ]

Fees” provision, because that provision does notstate either that it applies to all types

of attorney fees or that it applies specifically to attorney fees awarded under OCGA

§ 19-6-2. So even if attorney fees under OCGA § 19-6-2 were excepted from the

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provision, the provision would still have meaning because it would apply to other

types of attorney fees, such as the attorney fees sought by the wife under OCGA § 9-

15-14 (b).

The construction of the settlement agreement advocated by the husband gives

meaning to both the “Alimony” and “Attorney[ ] Fees” provisions. The settlement

agreement provides the parties with amethod for pursuing claims for attorneyfees, but

this method does not extend to attorney fees waived by the parties (namely, attorney

fees awarded under OCGA § 19-6-2 that are in the nature of alimony).

The wife asserts that extrinsic evidence shows the parties intended the

settlement agreement to allow them to seek attorney fees under OCGA § 19-6-2. But

as explained above, the terms of the settlement agreement, construed in accordance

with our rules of contract construction, provide otherwise. Moreover, the settlement

agreement includes a provision indicating that it is the parties’ entire agreement. “[I]n

general, the parties’ intent is to be determined from the [agreement’s] text alone, and

extrinsic evidence will be used to interpret the [agreement] only when its text is so

ambiguous that its meaning cannot be determined through application ofthe ordinary

rules oftextual construction.”Atlanta Dev. Auth. v.ClarkAtlanta Univ., 298 Ga. 575,

580 (III) (784 SE2d 353) (2016) (citation omitted). Extrinsic evidence “cannot be

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used to contradict or vary the terms of a valid written agreement[.]” Moreno v. Smith,

299 Ga. 443 (1) (788 SE2d 349) (2016). See OCGA § 13-2-2 (1) (“Parol evidence

is inadmissible to add to, take from, or vary a written contract.”). Unlike Frickey v.

Jones, 280 Ga. 573 (630 SE2d 374) (2006), cited by the wife, this is not a case where

the existence of the contract is in dispute.

4. Motion for frivolous-appeal sanctions.

Given our conclusion in favor of the husband, we deny the wife’s motion for

sanctions under Court of Appeals Rule 7 (e) (2), which permits the imposition of a

penalty for a frivolous appeal.

Judgment reversed. Reese, J., concurs and Rickman, J., dissents.

*”THIS OPINION IS PHYSICAL PRECEDENT ONLY, COURT OF

APPEALS RULE 33.2(a)”.
In the Court of Appeals of Georgia

A18A1688. FORD v. FORD.

RICKMAN, Judge, dissenting.

Because the majority fails to follow our well-established rule that we do not

address issues that were not raised and ruled upon in the trial court, I respectfully

dissent.

In the trial court, the wife sought attorney fees pursuant to OCGA § 19-6-2 and

OCGA § 9-15-14. With respect to the claim for fees under OCGA § 19-6-2, the

husband responded that the wife did not qualify for an award of attorney fees under

the requirements of the statute because the wife had an equal if not greater ability to

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pay her own attorney fees. The trial court awarded attorney fees to the wife under

OCGA § 19-6-2 and denied her request for fees under OCGA § 9-15-14. The husband

then filed a motion for reconsideration, raising for the first time his argument that the

terms of the parties’ settlement agreement addressing alimony, in conjunction with

case law interpreting OCGA § 19-6-2, precluded the wife from seeking attorney fees

under OCGA § 19-6-2. The trial court did not rule on the motion before the husband

petitioned for and was granted a discretionary appeal. The husband now seeks to raise

his new argument in this Court as his only argument on appeal.

“[A]bsent special circumstances,1an appellate court need not consider

arguments raised for the first time on appeal.” Pfeiffer v. Ga. Dept. of Transp., 275

Ga. 827, 829 (2) (573 SE2d 389) (2002); see Shelley v. Town of Tyrone, 302 Ga.

297, 308 (3) (806 SE2d 535) (2017) (an appellant may not “on appeal raise questions

or issues neither raised or ruled upon by the trial court”). The reason we do not

consider issues raised for the first time on appeal is because the trial court has not had

an opportunity to consider them. Extremity Healthcare v. Access To Care America,

1

“Special circumstances could include a jurisdictional challenge, a claim of

sovereign immunity, a serious issue of public policy, a change in the law, or an error

that works manifest injustice.” (Citation and punctuation omitted.) Pfeiffer, 275 Ga.

at 829 (2), n.10.

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339 Ga. App. 246, 258 (3) (793 SE2d 529 (2016). Further, it is well-established that

“this Court is for the correction of errors of law, and when the trial court has not ruled

on an issue, we will not address it.” Findley v. City of Atlanta, 345 Ga. App. 649, 652

(2) (814 SE2d 781) (2018); Stanley v. Govt. Employees Ins. Co., 344 Ga. App. 342,

346 (2) (810 SE2d 179) (2018). Because the husband’s new argument was not raised

and ruled on in the trial court, we should not address it.

The majority seeks to create an exception to our well-established rule, taking

the position that part of the wife’s burden of proof in showing her entitlement to

attorney fees under OCGA § 19-6-2 was a requirement that she demonstrate her

entitlement to those fees under the settlement agreement. As a result, the majority

concludes that the husband is free to raise his new argument based on the terms of the

settlement agreement, and that we should address it. To reach that conclusion, the

majority misconstrues the husband’s initial and very limited response to the wife’s

claim for fees, arguing that it is broad enough to encompass virtually any challenge

to the wife’s claim of entitlement to fees.

The majority relies on Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616

(501 SE2d 497) (1998), which arises in the summary judgment context and provides

that an argument on a factual issue that is part of the movant’s prima facie case is not

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waived by failing to raise it in the trial court. Id. at 617-618 (1). That case does not,

however, stand for the proposition that a party can raise new legal issues on appeal.

Instead,

that case simply acknowledges that to be entitled to summary judgment,

a party who bears the burden of proof at trial must present the trial court

with the facts showing its entitlement to judgment. When the record fails

to contain the facts supporting the grant of summary judgment, the

non-movant may argue this ground to the appellate court regardless of

whether the non-movant asserted an “objection to the prima facie case.”

Pfeiffer, 275 Ga. at 830 (3). The second case cited by the majority supports a finding

that the husband has waived his new argument in this case. See Kammerer Real

Estate Holdings v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 399-400 (740 SE2d

635) (2012), disapproved in part on other grounds, Artson, LLC v. Hudson, 322 Ga.

App. 859, 862 (2), n.1 (747 SE2d 68) (2013) (where new argument would require us

to construe contract terms to determine whether a contract is ambiguous, argument is

not one asserting that the record fails to contain the facts supporting the grant of

summary judgment, but presents a question oflaw, or, at best, a mixed question oflaw

and fact, and argument is waived on appeal). And the remaining cases relied upon by

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the majority allow new arguments related to the failure to meet statutorily-imposed

burdens or to the plaintiff’s failure to establish the basic elements of a claim.

None of those cases support the creation of an exception to our general rule that

we only consider issues that have been raised and ruled upon in the trial court. The

wife’s burden was to establish a claimunder OCGA § 19-6-2, which requires that the

claim be made in an action for alimony or divorce and alimony and that the claimant

provide evidence of the financial circumstances of both parties. See OCGA § 19-6-2

(a). The wife’s complaint for divorce sought temporary and permanent alimony, and

there was evidence that monthly alimony of $2,500 was ordered to be paid by the

husband until further order of court. The trial court’s order indicates that it considered

the evidence presented regarding the financial circumstances of the parties,

determined that the husband was in a superior financial position, and awarded fees on

that basis. Thus, it appears that the wife met her burden to set forth the elements of her

claim, and the husband was obligated to raise any arguments related to that claim in

the trial court. We need not consider a new legal argument that was not raised and

ruled upon in the trial court and that would require us to construe the terms of the

settlement agreement. See Findley, 345 Ga. App. at 652 (2); Kammerer Real Estate

Holdings, 319 Ga. App. at 399-400.

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